Recorded statements from key witness admissible in construction fatality trial

Recorded statements from Gerard McLaren, a man who witnessed the workplace accident that killed Eric Ndayishimiye in 2016, have been admitted as evidence after McLaren refused to return to Canada and testify.

Court exhibit photo of collapsed Pilosio table cart that fatally crushed 21-year-old Eric Ndayishimiye on July 21, 2016. Ndayishimiye was working for Banff Constructors on the Jim Pattison Children's Hospital. His employer and Pilosio Canada Inc. are charged with infractions under the Occupational Health and Safety Act. Saskatoon

Recorded statements from a worker who witnessed a fatal accident at the Children’s Hospital construction site in Saskatoon in 2016 have been admitted as evidence in court after the man refused to return to Saskatoon and testify at the trial of two companies charged in connection with his co-worker’s death.

Eric Ndayishimiye, 21, was working on the ground floor of the hospital when a table cart fell and crushed him on July 21, 2016.

The man operating the cart, Gerard McLaren, gave two statements to OHS officers, one on the day of the incident and another on Sept. 14. McLaren has since returned to Ireland and refuses to return to Canada to testify. He claims to suffer from PTSD as a result of the incident.

Both Crown prosecutor Buffy Rodgers and lawyers for the two companies accused of being liable in Ndayishimiye’s death made submissions on Wednesday regarding McLaren’s statements.

Jonathan Frustaglio, lawyer for cart supplier Pilosio Canada Inc., and David Myrol, representing the men’s employer, Alberta-based subcontractor Banff Constructors Ltd., opposed the inclusion of the statements in their entirety.

Frustaglio argued that the recordings did not meet a circumstantial threshold of trustworthiness for multiple reasons, including the fact that they were not taken under oath or sworn after the fact.

Both lawyers for the defence were concerned about their inability to cross-examine McLaren and questioned the fairness of the trial.

Myrol added that he was concerned that it would set a dangerous precedent considering the Saskatchewan Employment Act allows officers to compel a statement and caution witnesses about jeopardy they face if they provide inaccurate information.

Other concerns focused on the fact that portions of the recordings are inaudible or incomprehensible due to McLaren’s fraught emotional state during the first statement, and his Irish accent. The presence of his foreman, Steven King, during the first statement was also raised as a matter of concern.

Reading from his decision on Thursday, provincial court Judge Brent Klause said the submission of the McLaren statements is central to complete the narrative surrounding the series of events that resulted in Ndayishimiye’s death.

“In my opinion, it is extremely unlikely in that context that he would falsify his statement, which only points the finger of blame at himself and no one else. This gives it enhanced credibility.”

Klause said McLaren’s statements were inherently similar, with the largest difference being his emotional state.

His answers to investigators’ questions were also corroborated by several others who were present during the incident and were called to testify and be cross-examined during the proceedings. Nothing would change as a result of cross-examination, Klause added.

However, as King was already cross-examined, nothing he said in the statement will be granted any weight during trial.

Both companies are charged under the Occupational Health and Safety Act, accused of being liable in Ndayishimiye’s death by failing to provide proper training, failing to arrange for the safe use of trolleys and, in Pilosio’s case, failing to ensure the safety of supplied equipment when used as instructed.

Frustaglio said Pilosio is considering an application for severance, raising the issue during his submission Wednesday and arguing that McLaren’s statements lacked corroborating evidence in regard to the charges as they relate to Pilosio.

In addition, Rodgers successfully applied for an adjournment of the trial until later this year in order to have an expert look over an engineering report Banff introduced midway through proceedings; the report is unrelated to Pilosio, Frustaglio said.

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